Maine Forest Products Council v. Cormier ( 2022 )

United States Court of Appeals
For the First Circuit
No. 22-1198
MAINE FOREST PRODUCTS COUNCIL, PEPIN LUMBER, INC., and STÉPHANE
AUDET,
Plaintiffs, Appellees,
v.
PATTY CORMIER, in her official capacity as Director of the Maine
Bureau of Forestry, and AARON FREY, in his official capacity as
Attorney General for the State of Maine,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Howard, Circuit Judges.
Jason D. Anton, Assistant Attorney General, with whom Aaron
M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney
General, Chief, Litigation Division, and Sarah E. Coleman,
Assistant Attorney General, were on brief, for appellants.
Nolan L. Reichl, with whom Joshua D. Dunlap, Kellie MacDonald,
and Pierce Atwood LLP, were on brief, for appellees.
October 12, 2022
SELYA, Circuit Judge. This appeal requires us to
consider whether federal law preempts a Maine law fashioned to
prevent Canadian truck drivers from hauling logs within the state
under the auspices of the federal H-2A visa program. Finding that
the plaintiffs were likely to succeed in their challenge and that
the equities counseled in their favor, the district court
preliminarily enjoined enforcement of the law before it took
effect. See Me. Forest Prods. Council v. Cormier, 2022 WL 504379(D. Me. Feb. 18, 2022). Concluding, as we do, that the challenged
law is likely preempted as an obstacle to the federal H-2A program,
we affirm the district court's issuance of a preliminary
injunction.
I
The logging industry is a fixture of northern Maine. In
June of 2021, the Maine legislature enacted Public Law 280, titled
"An Act Regarding the Transportation of Products in the Forest
Products Industry" (P.L. 280). The relevant portions of the law,
codified at Me. Stat. tit. 12, § 8006, prohibit motor carriers and
landowners owning at least 50,000 acres of Maine forest land from
hiring anyone who is not a "resident of the United States" to drive
a vehicle "transport[ing] forest products" from one place to
another within Maine. Id. The law imposes an escalating series
of fines for violations, reaching as high as $25,000 per violation
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for a landowner and $10,000 per violation for a motor carrier.
See id.The sparse legislative history of P.L. 280 indicates
that the Maine legislature's primary concern was the federal
government's issuance of H-2A visas to Canadian truck drivers, who
would then secure employment moving Maine logs. Consistent with
this emphasis, P.L. 280 states that a "'[r]esident of the United
States' does not include a person eligible to be in the United
States under the United States H-2A visa program." Id.§ 8006(1)(E). Broadly speaking, the H-2A visa program (which we
shall discuss in more detail below) authorizes foreign
agricultural workers to perform seasonal work in this country when
qualified U.S. workers cannot be found to fill available jobs.1
See 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1188; Overdevest Nurseries,
L.P. v. Walsh, 2 F.4th 977, 980 (D.C. Cir. 2021).
The parties direct our attention to testimony presented
to the legislature's Joint Standing Committee on Taxation by one
of the law's principal sponsors, Senator Troy Jackson. Senator
Jackson asserted that "Maine loggers and truckers face an uphill
battle competing against their counterparts in Canada, who benefit
from a favorable exchange rate and government-sponsored health
insurance." This competition, he continued, is facilitated by the
1 For purposes relevant to H-2A visas, agricultural labor
includes logging employment. See 29 C.F.R. § 501.3(b).
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federal government's practice of issuing H-2A visas to Canadian
truck drivers who transport logs within Maine — a practice that
Senator Jackson claimed "has depressed wages for Maine people
working in the woods and handed large landowners extraordinary
power in the industry." According to Senator Jackson, granting H-
2A visas to Canadian truck drivers to transport Maine logs within
the state is a "misuse of the H-2A program" and causes "injustice
to Maine workers."2
On October 7, 2021 — just a few days before P.L. 280 was
to take effect — this action was brought. Maine Forest Products
Council (a logging industry trade association), Pepin Lumber, Inc.
(a Maine logging company), and Stéphane Audet (a Canadian truck
driver working for Pepin Lumber under an H-2A visa) jointly filed
suit in the United States District Court for the District of Maine
against the Director of the Maine Bureau of Forestry and the
2 Senator Jackson added that his prior experience in the
logging industry led him to believe that federal law already
prohibits Canadian truck drivers from transporting goods point-
to-point within the United States, a practice known as "cabotage."
See 8 C.F.R. § 214.2(b)(4)(i)(E) (restricting point-to-point
transportation of goods by aliens entering the country under B-1
business visas pursuant to the United States-Mexico-Canada
Agreement); Robert v. Reno, 25 F. App'x 378, 382 (6th Cir. 2002)
(discussing cabotage rules); see also 19 C.F.R. § 123.14(c). In
light of the federal prohibition on cabotage for those possessing
B-1 visas, Senator Jackson mused, "there is real confusion as to
why the federal government would allow this practice under the H-
2A visa program." But even though the cabotage issue was
apparently a significant part of Senator Jackson's motivation, it
is of minimal relevance to this appeal. Consequently, we do not
dwell on it.
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Attorney General of Maine (together, the State). Their complaint,
which sought injunctive and declaratory relief, alleged that P.L.
280 is preempted under the Supremacy Clause of the United States
Constitution and violates the Equal Protection Clauses of both the
United States and Maine Constitutions.
The same day, the plaintiffs (whom we shall sometimes
refer to collectively as "the Loggers") moved for a temporary
restraining order (TRO) and a preliminary injunction against the
enforcement of P.L. 280. During a conference with counsel that
day, the TRO motion was dismissed following the State's agreement
that it would not enforce P.L. 280 until further order of the
district court. See Me. Forest Prods. Council, 2022 WL 504379, at
*1. The parties — agreeing on the relevant facts — subsequently
briefed the preliminary injunction motion. See id. at *1 n.1. On
February 18, 2022, the district court preliminarily enjoined the
enforcement of P.L. 280 in its entirety on two independent grounds:
preemption and equal protection. See id. at *31-32.
This timely appeal ensued. In it, the State challenges
only the substance of the preliminary injunction, not its breadth
or scope. We limit our review accordingly.
II
We begin with a cautionary note: "[a] preliminary
injunction is an extraordinary remedy never awarded as of right."
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To
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obtain this remedy, the moving parties must show that the balance
of four factors tips in their favor: a "likelihood of success on
the merits; whether and to what extent the movant[s] will suffer
irreparable harm in the absence of preliminary injunctive relief;
the balance of relative hardships . . . ; and the effect, if any,
that either a preliminary injunction or the absence of one will
have on the public interest." Ryan v. U.S. Immigr. & Customs
Enf't, 974 F.3d 9, 18 (1st Cir. 2020).
We review a district court's grant of a preliminary
injunction for abuse of discretion. See We the People PAC v.
Bellows, 40 F.4th 1, 9 (1st Cir. 2022). Under this multifaceted
standard, "we review the district court's answers to legal
questions de novo, factual findings for clear error, and judgment
calls with some deference to the district court's exercise of its
discretion." Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 92
(1st Cir. 2020).
On appeal, the State has challenged only the district
court's determination that the Loggers have shown a likelihood of
success on the merits. We have made it pellucid that this is the
factor that "weighs most heavily in the preliminary injunction
calculus." Ryan, 974 F.3d at 18. It is, moreover, the "sine qua
non" for preliminary injunctive relief. Id. (quoting New Comm
Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.
2002)).
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The district court found that the other three factors
were compatible with the issuance of a preliminary injunction.
See Me. Forest Prods. Council, 2022 WL 504379, at *29-31. On
appeal, the State has not advanced any arguments relevant to those
factors, and we deem any such argument waived. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
The upshot is that, for present purposes, the
preliminary injunction rises or falls on the plaintiffs'
likelihood of success on the merits of their claims. It is to
that singular issue that we now turn. And although the district
court found that the Loggers' challenge to P.L. 280 was doubly
likely to succeed — on the separate grounds of preemption and equal
protection — it is unnecessary for us to address both aspects of
the district court's decision.3 See Toll v. Moreno, 458 U.S. 1,
9-10 (1982) (affirming lower court's preemption holding and
declining to address alternative equal protection holding). We
conclude that P.L. 280 is likely preempted and — with that
conclusion as the linchpin — we hold that the plaintiffs have
We read the district court's opinion as concluding that a
3
preliminary injunction was warranted on the preemption theory
alone. See Me. Forest Prods. Council, 2022 WL 504379, at *19 &
n.23. The court also chose to address the equal protection theory,
chiefly because the existence of irreparable harm is "clearer" on
that ground and avoiding the equal protection analysis would "run[]
the risk" that this court would be required to remand. Id. at *19
n.23.
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carried their burden of showing a likelihood of success on the
merits.
A
Our system of overlapping federal and state
sovereignties gives rise to "the possibility that laws can be in
conflict or at cross-purposes." Arizona v. United States, 567
U.S. 387, 399 (2012). The constitutional rule in such cases,
embodied in the Supremacy Clause, makes federal law "the supreme
Law of the Land," which overwhelms "any Thing in the Constitution
or Laws of any State to the Contrary." U.S. Const. art. VI, cl.
2. Congress thus "has the power to pre-empt state law." Arizona,
567 U.S. at 399.
Preemption has three branches: "express," "field," and
"conflict." Id.; see Consumer Data Indus. Ass'n v. Frey, 26 F.4th
1, 5 (1st Cir. 2022). In this instance, the parties have focused
their arguments solely on conflict preemption — specifically, the
offshoot of conflict preemption called "obstacle preemption." We
follow their lead.
Obstacle preemption is implicated when "the challenged
state law 'stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.'"
Arizona, 567 U.S. at 399 (quoting Hines v. Davidowitz, 312 U.S.
52, 67 (1941)). Cases of obstacle preemption (like all forms of
preemption) fit into the following mold: "Congress enacts a law
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that imposes restrictions or confers rights on private actors; a
state law confers rights or imposes restrictions that conflict
with the federal law; and therefore the federal law takes
precedence and the state law is preempted." Murphy v. Nat'l
Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1480 (2018). "What is
a sufficient obstacle is a matter of judgment, to be informed by
examining the federal statute as a whole and identifying its
purpose and intended effects." Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 373 (2000).
"In all pre-emption cases, and particularly in those in
which Congress has 'legislated . . . in a field which the States
have traditionally occupied,' we 'start with the assumption that
the historic police powers of the States were not to be superseded
by the Federal Act unless that was the clear and manifest purpose
of Congress.'" Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)
(alteration in original) (citation omitted) (quoting Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The presumption
does not apply, though, "when the State regulates in an area where
there has been a history of significant federal presence." United
States v. Locke, 529 U.S. 89, 108 (2000); see Brown v. United
Airlines, Inc., 720 F.3d 60, 68 (1st Cir. 2013). And whether or
not the presumption against preemption applies, the burden of
proving preemption lies with the parties asserting it (here, the
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plaintiffs). See Capron v. Off. Of Att'y Gen. of Mass., 944 F.3d
9, 21 (1st Cir. 2019).
The Loggers argue that the presumption is inapplicable
here because P.L. 280 seeks to regulate immigration — an area
traditionally of federal concern. This argument is not without
some force, but — for ease in exposition — we assume (albeit
without deciding) that the presumption against preemption applies
in this case.
B
Having sketched the analytical framework governing the
Loggers' claim of obstacle preemption, we proceed to describe the
H-2A program with which P.L. 280 is alleged to conflict. Under
the Immigration and Nationality Act of 1952 (INA), as amended, an
"H-2A worker" is "an alien . . . having a residence in a foreign
country which he has no intention of abandoning who is coming
temporarily to the United States to perform agricultural labor or
services . . . of a temporary or seasonal nature." 8 U.S.C.
§§ 1101(a)(15)(H)(ii)(a), 1188(i)(2). An H-2A petition must be
filed with federal immigration authorities by the worker's
prospective employer. See id. § 1184(c)(1); 8 C.F.R.
§ 214.2(h)(5). Approval of an H-2A petition is contingent upon
the certification of the Secretary of Labor that:
(A) there are not sufficient workers who are
able, willing, and qualified, and who will be
available at the time and place needed, to
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perform the labor or services involved in the
petition, and
(B) the employment of the alien in such labor
or services will not adversely affect the
wages and working conditions of workers in the
United States similarly employed.
8 U.S.C. § 1188(a)(1).
Congress has authorized the Secretary of Labor to
promulgate regulations implementing the H-2A program. See 8 U.S.C.
§ 1188; see also 8 U.S.C. § 1101(a)(15)(H)(ii). Pursuant to this
authority, the Secretary has issued comprehensive regulations
governing the H-2A certification process. As relevant here, the
key components of that process are as follows. The employer must
submit an "Application for Temporary Employment Certification" to
the Secretary of Labor. 20 C.F.R. § 655.130. Between sixty and
seventy-five days before work is needed, the prospective employer
must also submit a "job order" meeting specified criteria to the
local State Workforce Agency (SWA), which will advertise compliant
job orders through the intrastate and interstate "clearance"
systems in an effort to find qualified U.S. workers. Id.§ 655.121(a)-(c). The employer must accept all referrals of
eligible U.S. workers by the SWA and independently recruit U.S.
workers for the job. See id. §§ 655.135, 655.153; see also 8
U.S.C. § 1188(b)(4). If the employer rejects qualified referrals
or other U.S. applicants without a legitimate reason, they will be
counted as "available" workers, and their presence may prevent the
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issuance of the necessary certification that "there are
insufficient U.S. workers to fill the employer's job opportunity."
20 C.F.R. § 655.161(b).
The regulations also ensure that the open agricultural
jobs can be filled by qualified U.S. workers without depressing
their wages or working conditions. For example, "[e]mployers
seeking H-2A certification are required to pay the higher of the
Adverse Effect Wage Rate (AEWR), the prevailing wage, or the legal
minimum wage." Mendoza v. Perez, 754 F.3d 1002, 1008 (D.C. Cir.
2014) (citing 20 C.F.R. § 655.120(a)). "The AEWR is a specially
calculated wage based on the Department of Agriculture's Farm Labor
Survey, which approximates what the prevailing wage would be if
not for the hiring of foreign workers." Id. (citing Temporary
Agricultural Employment of H-2A Aliens in the United States, 75
Fed. Reg. 6884, 6891-93 (Feb. 12, 2010)). This rate, in effect,
"provides a wage floor that aims to prohibit employers from
underpaying foreign workers and thereby depressing wages for
similarly-employed American workers." Overdevest Nurseries, 2
F.4th at 981. Moreover, the employer "must offer to U.S. workers
no less than the same benefits, wages, and working conditions that
the employer is offering, intends to offer, or will provide to H-
2A workers" — all of which must satisfy certain minimum standards
specified by regulation. 20 C.F.R. § 655.122.
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If the Secretary of Labor provides the certification and
the petition is approved by the immigration authorities, the H-2A
worker "may be employed only by the [employer] through whom the
status was obtained." 8 C.F.R. § 274a.12(b)(9). An H-2A visa
will be revoked if the worker "is no longer employed by the
petitioner in the capacity specified in the petition." Id.
§ 214.2(h)(11)(iii)(A)(1).
C
This tees up the question of whether P.L. 280 is an
obstacle to the achievement of Congress's purposes in enacting the
H-2A worker visa program and, therefore, preempted.
1
As classically formulated, the doctrine of obstacle
preemption invites courts to assess a federal statute's "full
purposes and objectives" in deciding whether the state law "stands
as an obstacle" to their achievement. Hines, 312 U.S. at 67. In
Arizona, for example, the Supreme Court held that a state law
making it a crime for an unauthorized alien to apply for or perform
work in the state was "an obstacle to the regulatory system
Congress chose." 567 U.S. at 406. After examining "the text,
structure, and history" of the relevant statute, the Court
concluded that "Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or engage in
unauthorized employment." Id. The state law criminalizing that
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conduct was therefore preempted under the doctrine of obstacle
preemption. See id. at 407.
Recently, though, several Justices have questioned the
wisdom and legitimacy of grounding preemption upon judicial
"[e]fforts to ascribe unenacted purposes and objectives to a
federal statute." Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894,
1907 (2019) (lead opinion of Gorsuch, J.). Such purposes are
difficult to discern, these Justices argue, and finding preemption
due to "hidden legislative wishes" risks "displacing the
legislative compromises actually reflected in the statutory text"
— thereby "displacing perfectly legitimate state laws on the
strength of 'purposes' that only we can see, that may seem
perfectly logical to us, but that lack the democratic provenance
the Constitution demands before a federal law may be declared
supreme." Id. at 1907-08.
Perhaps harboring concerns of this nature, the Court's
recent cases have subtly reframed the obstacle preemption analysis
as limited to cases in which "Congress enacts a law that imposes
restrictions or confers rights on private actors" and "a state law
confers rights or imposes restrictions that conflict with the
federal law." Murphy, 138 S. Ct. at 1480. In that vein, the Court
glossed Arizona's holding, reasoning that the federal statute at
issue there "implicitly conferred a right to be free of criminal
(as opposed to civil) penalties for working illegally, and thus a
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state law making it a crime to engage in that conduct conflicted
with this federal right." Kansas v. Garcia, 140 S. Ct. 791, 806
(2020).
Mindful of this subtle shift, we frame the question
before us as follows: have the Loggers shown that they are likely
to succeed in their claim that the federally enacted H-2A program
confers a right on private actors (either explicitly or implicitly)
that conflicts with P.L. 280's restrictions? As we shall explain
below, we think that such a conflict is unmistakable and that,
therefore, the Loggers have made the requisite showing.
2
The text and structure of the H-2A statutory provisions
reflect Congress's considered judgment that agricultural employers
who cannot find qualified U.S. workers should be able to hire
foreign laborers when specified criteria are satisfied. The system
is responsive to the employer's immediate labor needs. For
instance, the employer's application deadline cannot be "more than
45 days before the first date the employer requires the labor or
services of the H-2A worker," and the employer must be notified of
any deficiencies in the application and be given a chance to
resubmit. 8 U.S.C. § 1188(c). Tellingly, the statute directs the
Secretary of Labor to issue the requisite certification so long as
"the employer has complied with the criteria for certification"
(both statutory and regulatory), and to do so "not later than 30
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days before the date such labor or services are first required to
be performed." Id. § 1188(c)(3)(A). Although Congress left the
ultimate decision about whether to grant a given petition in the
Attorney General's discretion, the Attorney General must first
consult with the Department of Labor and the Department of
Agriculture. See id. § 1184(c)(1).
To be sure, an employer seeking to hire an H-2A worker
must jump through hoops. This is because "Congress was concerned
about (1) the American workers who would otherwise perform the
labor that might be given to foreign workers, and (2) American
workers in similar employment whose wages and working conditions
could be adversely affected by the employment of foreign laborers."
Mendoza, 754 F.3d at 1017. Even so, Congress deliberately crafted
the H-2A program as a last resort for employers who have
demonstrated a specific, unfilled need for temporary agricultural
labor that U.S. workers will not do (and when U.S. workers will be
no worse off if foreign workers do it instead). Congress evidently
decided that when an employer has run this gauntlet and made the
required showing to federal authorities, the employer should have
access to foreign labor rather than see its business prospects
wither on the vine. We think it follows that Congress conferred
a right, at least implicitly, on agricultural employers to hire
temporary foreign workers when the H-2A criteria are satisfied.
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The history of the H-2A program confirms this
understanding. As originally enacted, the INA recognized a general
H-2 category of nonimmigrant aliens "coming temporarily to the
United States to perform other temporary services or labor, if
unemployed persons capable of performing such service or labor
cannot be found in this country." INA, Pub. L. No. 82-414,
§ 101(a)(15)(H)(ii), 66 Stat. 163, 168. In this respect, the
statute did not differentiate agricultural workers from other
workers, and it contained no requirement for certification by the
Secretary of Labor.4
All of this changed with the enactment of the Immigration
Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100Stat. 3359. "Congress enacted [the] IRCA as a comprehensive
framework for 'combating the employment of illegal aliens.'"
Arizona, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc.
v. NLRB, 535 U.S. 137, 147 (2002)). Amending the INA, section 301
of the IRCA established the H-2A agricultural worker program that
we already have described. See 100 Stat. at 3411-17. According
to the Senate Report, the purpose of the new H-2A category was "to
assist agricultural employers in adjusting to the reduced
availability of illegal foreign workers" in light of the IRCA's
4 As a corollary, it should be noted that federal law at the
time did not generally forbid the employment of aliens unlawfully
present in the country. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
892-93 (1984).
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greater restrictions. S. Rep. No. 99-132, at 2 (1985); cf. Changes
to Requirements Affecting H-2A Nonimmigrants, 73 Fed. Reg. 76891,
76891 (Dec. 18, 2008) (describing purpose of H-2A regulations "to
provide agricultural employers with an orderly and timely flow of
legal workers, thereby decreasing their reliance on unauthorized
workers, while protecting the rights of laborers"). The H-2A
program was thus conceived as a means of addressing the unmet
seasonal labor needs of agricultural employers by conferring a
right to hire foreign laborers under specified conditions.
Having given shape to this implicit federal right, the
conflict with P.L. 280 becomes starkly apparent. P.L. 280 is a
blunt intrusion on the implicit federal right. Not by accident,
it constitutes a direct and significant obstacle to achieving the
H-2A program's clear and manifest objectives. The state law
purports to forbid the employment of some of the very same laborers
whom federal law authorizes to work after an exacting showing of
need by their employers, in compliance with elaborate statutory
and regulatory criteria.
It is difficult to envision a more perfect collision of
purposes. P.L. 280 would nullify the implicit federal right of
the employer to hire foreign laborers on a temporary basis when —
through a process established by federal law — federal officials
have specifically determined that U.S. workers are unavailable for
the job and unaffected by the competition. The state law thus
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rudely "interfere[s] with the careful balance struck by Congress."
Arizona, 567 U.S. at 406.
The State contends that federal law does not preempt
P.L. 280 because the H-2A program incorporates state employment
law such that the two work in concert. In support, the State cites
a regulatory provision requiring the SWA to ensure that each job
order in the clearance system includes an assurance by the employer
that "[t]he working conditions comply with applicable Federal and
State minimum wage, child labor, social security, health and
safety, farm labor contractor registration and other employment-
related laws." 20 C.F.R. § 653.501(c)(3)(iii). P.L. 280's ban on
H-2A truckers, the State contends, is merely one iteration of the
"other employment-related laws" with which a job order must comply
to qualify for the H-2A program. Based on this interpretation of
the regulation, the State argues (in essence) that P.L. 280 is
itself part of the federal scheme and can therefore prevent the
issuance of H-2A visas for intrastate log-hauling jobs without
being preempted by federal law.
Yet, that interpretation is belied by the text of the
regulation, which — at the outset — specifies that it is the
"working conditions" of the job that must comply with relevant
law. The regulation, then, does not encompass every law about
employment (as the State would have us read it) but, rather,
encompasses a more circumscribed universe of "employment-related
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laws" that pertain to working conditions. That obvious conclusion
is bolstered by the ejusdem generis canon, which instructs that
where "a more general term follows more specific terms in a list,
the general term is usually understood to embrace any object
similar in nature to those objects enumerated by the preceding
specific words." Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625
(2018) (internal quotation omitted). That is precisely the
situation here: the specific types of laws listed in 20 C.F.R.
§ 653.501(c)(3)(iii) are laws relating to working conditions — and
P.L. 280 is not similar in nature to those laws. Thus, P.L. 280
is too much of an interloper to find a home within the generalized
regulatory phrase "other employment-related laws." To conclude
that the law fits into the list would take a leap of faith
equivalent to concluding that an elephant fits into an aviary.
What is more, we would not lightly adopt a reading of
this regulation that would require federal officials to deny H-2A
visas because of a state law specifically targeting the H-2A
program. Such a reading would be in tension with the structure
and purpose of the H-2A statutory provisions and would effectively
give states a veto power over the federal program. The structure
and purpose of the program argue persuasively against the existence
of such a veto power. See 20 C.F.R. § 655.121(b)(2) (providing
employers with process to bypass SWA and petition Department of
Labor directly if SWA does not approve job order).
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The State's final refrain is that P.L. 280's "goal of
protecting Maine's domestic labor market" does not conflict with
federal law but, rather, is "complementary" to the H-2A program's
manifest concern with potential adverse effects on U.S. workers
due to imported foreign laborers. The State claims that "Maine's
Legislature enacted the law based on its determination that there
are sufficient local, domestic workers to fill these positions and
that employment by non-domestic workers has an adverse impact on
Maine wages and the Maine economy."5
This claim will not wash. Even a state law that
"attempts to achieve one of the same goals as federal law" may be
preempted when "it involves a conflict in the method" of execution.
Arizona, 567 U.S. at 406; see Amalgamated Ass'n of St., Elec. Ry.
& Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 287 (1971)
("Conflict in technique can be fully as disruptive to the system
Congress erected as conflict in overt policy."). P.L. 280's
methods of protecting domestic workers are, in many important
respects, at odds with the federal program's methods.
The H-2A process determines the availability of U.S.
workers on a case-by-case basis and by floating a job order on the
5 The State also points to an out-of-circuit case as support
for its position, LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005).
But that case is readily distinguishable, as its preemption
analysis relies on the structure and purpose of a different visa
scheme: the H-1B program.
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market; it addresses adverse impacts on U.S. workers by setting
minimum wage rates and working conditions; it lodges
decisionmaking authority with the Secretary of Labor and the
Attorney General; and it responds to employers' labor needs by
allowing the hiring of foreign workers as a last resort. P.L. 280
does none of these things, yet it attempts to override the specific
H-2A work authorizations provided by federal law. The Supremacy
Clause stands in its way.
III
We need go no further. Preliminary injunctions are
strong medicine and should be dispensed with care. Here, however,
the Loggers have carried their burden of showing (even assuming
arguendo the applicability of the presumption against preemption)
that the H-2A restriction imposed by P.L. 280 is likely preempted
by federal law. Given this showing and given the district court's
unchallenged determination that the other elements of the
preliminary injunction calculus are consistent with the granting
of relief, the district court's issuance of a preliminary
injunction must be
Affirmed.
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